By Martha Shirk ,Of the Post-Dispatch Staff
A lesbian who's taken care of her former lovers' 2 1/2-year-old child from
birth is the child's "equitable" parent" and should help raise
him; a St. Louis judge has ruled.
St. Louis Family Court Judge Thomas J. Frawley on Tuesday gave the mother
legal custody of the boy, but ordered her to consult with the other woman on
all parenting decisions. He also ordered them to split the child's time
equally between them. The 'child will change residences every Friday. Frawley
said that separating the child from the woman who has raised him would harm
him emotionally.
Family law experts said that Frawley's ruling may open the way for other
people, such as stepparents , or live-in companions, to use the
"equitable parent" concept to seek continuing contact with a child,
after their relationships with the child's parent have ended.
"I think this is an important step in recognizing that a child can be
harmed by the interruption of a relationship with an adult whom the child
views as a parent," said Susan Appleton, a family law expert at the
Washington University School of Law. "A child's affection and trust
aren't based on neat legal definitions of who counts as a parent."
Although the "equitable parent" concept has figured in custody
decisions elsewhere, and in inheritance cases in Missouri, this is apparently
the first custody case in Missouri in which it has been cited to justify
continuing contact between a child and an unrelated adult.
The case started last summer when a 35-year-old warehouse worker known in
court records as A.L. sought legal and physical custody of the child.
A.L. said that her former lover, Y.R., an unemployed mother of four, gave
her the child within days of his birth, in June 1993, and that he spent all
but one night of his life with her until last June. She says she returned him
to his mother after she was threatened with prosecution.
A.L. was seeking full legal and physical custody of the child. Leigh
Joy Carson, the attorney Frawley appointed to represent the child, supported
her position.
During a two-day trial last month, Y.R. denied that she had been A.L.'s
lover or had promised A.L. that she could raise the child, although she
admitted leaving him with A . L. for weeks at a time. She said that she gave
the child A.L.'s surname only because A.L. was his godmother. Frawley said in
his order that he believed A.L.'s version of events, not Y.R.'s.
The mother's attorney, Allen Harris, argued that A.L.'s sexual orientation
made her unfit to rear the boy. But Frawley said her sexual orientation was
not an issue because of evidence that the child's mother had also engaged in
lesbian sexual activities. Frawley put limits on both women's sexual
activities: no overnight adult visitors in their homes while the child is
present.
Frawley said the case was a reflection of changing social relationships and
required a " functional approach" rather than a "traditional,
stricter formal approach" to defining family.
"Courts must seek to resolve custody and visitation disputes in a way
which minimizes the detriment a child suffers when his emotional bonds do not
conform to traditional family norms," Frawley wrote in his order.
"Courts must be ever cognizant of the child's need for stability in his
fife and continuity in his personal relationships and never underestimate his
ability to manage multiple parenting relationships."
Frawley took the concept of an "equitable parent" from court
rulings in New York and Washington. An "equitable parent" is a
person who "provides for the physical, emotional and social needs"
and whose relationship with the child "began with the consent of the
child's legal parent," those rulings have held.
The child's mother declined to comment until she could be briefed on the
ruling by her attorney. He, too, declined to comment.
A.L. said that she was disappointed in the ruling because it upset the
child to change homes every week, as he's been doing, under court order, since
February. "He just cries and cries when he has to go to her," A.L.
said. "I wish she would just disappear and give me my baby back."
A.L.'s attorney, Adrienne L. Schaffer, said she was "thankful that the
court acknowledged the strong bond between my client and the child and made
sure she has a significant role in raising of him."
Carson, the child's attorney,
praised Frawley for "a courageous decision." Even so, she plans to
ask him to reconsider and give legal and primary physical custody to A.L.
"Listening to her talk about the role she plays in his life is food for
the soul," Carson said. "The relationship she has with the child is
truly extraordinary."
